FOR THE RESPONDENT: MR FAKIR HASSAN (MANAGER BROADCAST COMPLIANCE POLICY & REGULATORY AFFAIRS) AND WITH HIM MR JEREMY MAGGS (PRESENTER)

Transcription

1 DATE OF INQUIRY: 28 NOVEMBER 2003 ROBERT KIRBY CASE NO: 52/2003 COMPLAINANT vs SABC (SAFM) RESPONDENT TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIR) REV DANIE DU TOIT DR LYNDA GILFILLAN MS ZENOBIA AFRICA THE COMPLAINANT IN PERSON FOR THE RESPONDENT: MR FAKIR HASSAN (MANAGER BROADCAST COMPLIANCE POLICY & REGULATORY AFFAIRS) AND WITH HIM MR JEREMY MAGGS (PRESENTER) Accuracy broadcast presenter accusing Complainant, a columnist in the Mail & Guardian (newspaper), of having been inaccurate in his allegation of bias this accusation giving rise to the right to reply, which was unjustifiably refused by the Respondent. Privacy - in rejecting columnist s complaint regarding reference to said columnist as ageing and bitter, broadcast presenter arguing that this description was in reaction to the Complainant s previously having called him the SABC s famous talking corpse in his press column - a presenter may not react in this manner without explaining the reason for the invasive remark - this remark was, in any case, not relevant to the debate, which dealt with the availability for an interview on air of a representative of the lobby which had accused another well-known columnist of having plagiarised the writing of an overseas author. The response on air by the latter columnist and his publisher was that

2 2 the alleged plagiarism amounted to a mistake, and there had been no intention to plagiarise. Fundamental Rights - privacy said remark unjustifiably intruding upon Complainant s right to privacy age being a private matter no compelling reason to include age in broadcast; the innuendo that the ageing affected accuracy was taken into consideration in coming to the conclusion. The word bitter adding to the invasion, but not sufficient in itself to justify a contravention of the Broadcasting Code. Bias Tribunal holding in favour of SABC that there was no evidence of bias in favour of the Bristow-Bovey supporters on the part of the SABC in the treatment of the plagiarism debate. Sanction that a summary of the decision of the Tribunal be broadcast at the commencement of any of the first two broadcasts of Media@Safm after the release of the judgment. Complainant, however, agreeing that this broadcast need not take place. BCCSA retracting the order. SUMMARY A newspaper columnist complained to the Commission that the SABC had unjustifiably denied him the right to reply to an accusation of inaccuracy in his column by the presenter of a programme on SAfm, one of the radio stations of the SABC. He also complained that the presenter had invaded his privacy by having referred to him as an ageing and bitter Western Cape columnist. The Tribunal held that since the dispute dealt with alleged plagiarism the matter was one of controversial public importance and that the SABC was not justified in denying the columnist the opportunity to reply on air against the criticism lodged against him. As to the question of privacy, it was held that age is a private matter and that the circumstances had not justified the reference. Age was, in any case, irrelevant to the debate. In coming to the conclusion of an invasion of privacy, it was also taken into consideration that there was an innuendo that the ageing had contributed to the alleged inaccuracy. The Tribunal held, in favour of the SABC, that it had not been biased in dealing with the plagiarism issue as a whole.

3 3 JUDGMENT VAN ROOYEN, CHAIRPERSON [1] The Complainant, Mr. Robert Kirby, a columnist for the Mail & Guardian newspaper, lodged a complaint with the Registrar of this Commission in regard to remarks made during a broadcast of the programme Media@Safm by the presenter of the programme, Mr. Jeremy Maggs. SAfm is one of the radio stations of the SABC, which is the public broadcaster in terms of the Broadcasting Act Although the complaint pertained to what Mr. Maggs had said, the SABC is responsible for what is broadcast and is, accordingly, the Respondent in this matter. [2] Allegations of plagiarism on the part of Mr. Darryl Bristow-Bovey, a columnist for various newspapers in the Independent Group, formed the basis of a debate both in the printed and broadcasting media. The subsequent furore in the media was notable for its passion, on both sides. Some commentators were in favour of Mr. Bristow-Bovey, and defended him for what they regarded as no more than a mistake. Mr. Bristow-Bovey, in an interview with Ms Michelle Constant, on another SABC programme, attributed the substantial reproduction of the material in question to an error, and stated that he had not done this intentionally. This interview was re-broadcast on Media@Safm. Mr. Bristow-Bovey s publisher stated in an interview with Mr. Maggs that the matter had been cleared afterwards with both the author (Bryson) and his publisher, and that because the mistake had

4 4 not been substantial, they had decided not to withdraw and pulp Mr. Bristow- Bovey s book. Among the more vehement critics of Mr. Bristow-Bovey was Mr. David Bullard, a columnist for the Sunday Times. Mr. Maggs's radio programme covered the story on three consecutive Sundays in September 2003, mainly in the form of interviews with Mr. Bristow-Bovey, Prof. Anton Harber of the Wits School of Journalism and with the publisher, Mr. Connelly from Struik Publishers. Mr. Bullard was interviewed on the third programme. Since it is relevant for this judgment, it should be noted that the dates on which the matter was discussed on Media@Safm were Sunday 14, 21 and 28 September On the first occasion an interview was conducted with the publisher, and the hope was expressed that separate interviews with Mr. Bullard and Mr. Bristow-Bovey would be conducted the following Sunday, the 21 st. Mr. Maggs stated that Mr. Bristow-Bovey did not wish to go head-to-head with Mr. Bullard, and that therefore separate interviews would be held. The following Sunday, parts of an interview that the SABC s Michelle Constant had conducted with Mr. Bristow-Bovey were re-broadcast and no explanation was given as to why the interview with Mr. Bullard was not held. Mr. Bullard was, however, interviewed on the 28 th. [3] On Friday 26 th Mr. Kirby s column was published in the Mail & Guardian. The title was Oh what a Tangled Web and the column dealt exclusively with the charges of plagiarism. Mr. Kirby, inter alia, wrote the following in the column:

5 5 anyone who calls the above a paraphrase is either deeply stupid or willfully misleading. Both Mr. Bristow-Bovey and his publisher deny that he ever sat and copied Bryson s work. The amazing similarity in lines of text is attributed to (his) fantastic photographic memory The question also arises of SABC bias in this matter. Why did Mr. Maggs and his producers see fit to afford two interviews to the Save Bristow-Bovey camp and not even one to anyone who differed? On the 14th of this month, Maggs assured his listeners that the following Sunday Mr. David Bullard of the Sunday Times would be invited to answer criticism of his views on the matter. After all, Bullard was mentioned several times in the programme as being Bristow- Bovey s chief detractor. Maggs s public undertaking was not honoured. Why? [4] The opening two paragraphs of the column are also particularly relevant to the present dispute: One thing you have to say for Darryl Bristow-Bovey, he goes out with all his guns sputtering. Last Sunday SAfm listeners heard the embattled columnist advance the rather novel defence that he hadn't actually plagiarised anything because it's impossible to plagiarise material which has already been plagiarised. What he lifted from Bill Bryson had already been in the public domain when Bill Bryson first lifted it. A novel defence indeed but which didn't inhibit the SABC s famous talking corpse, Jeremy Maggs, from a display of gut-wrenching magnanimity. We'll miss you and we all hope you'll be back, Darryl oozed Jeremy. If you ever want to put your side of the story, please just get in touch. Jeremy s very generous with the embalming fluid. [5] On Sunday 28 th, two days after the column appeared, Mr. Maggs made the following comments during the programme: I'd also like to put something on the record here this morning. I think it's important to mention that we were hoping to talk to Bullard last week after we ran our interview of Mr. Bristow-Bovey, but he was unavailable. So a suggestion by an ageing and bitter Western Cape newspaper columnist that there is a pro-bristow-bovey bias on this programme is simply untrue. Now, it might grab headlines to peddle anti-sabc conspiracy theories, but Robert Kirby you've got this one wrong in the Mail & Guardian. A simple phone-call to the radio station would have cleared matters up, but whoever let accuracy interfere with a good column? The invitation remains to Darryl Bristow-Bovey to call us when he decides to do an interview, and that same invitation is extended today to the Mail & Guardian s Robert Kirby. We are planning a story in the near future on accuracy in journalism. (my emphasis in italics) Approximately an hour later, Mr. Maggs returned to the subject and made the following comments: Once again for the record, just to put an ageing Western Cape newspaper columnist in the picture. There is no I repeat no SABC conspiracy theory to muzzle Bristow-Bovey s detractors, as Robert Kirby suggested in the Mail & Guardian this past Friday. David Bullard was simply unable to be with us last week when we played the Darryl Bristow-Bovey interview and that was due to another commitment. Again, we look forward to inviting Robert Kirby onto the show when we do a story in the near future on accuracy in reporting. (my emphasis in italics)

6 6 [6] At the hearing of this matter, Mr. Maggs conceded that he had been annoyed by the reference to himself as a talking corpse, as well as by the question as to bias. This concession accorded with Mr. Kirby s argument before us that the tone of voice and manner of delivery substantiated the view that Mr. Maggs, and therefore the SABC, had acted in contravention of the Broadcasting Code insofar as Mr. Maggs had interfered with Mr. Kirby s privacy by referring to him as ageing. Mr. Maggs, on the other hand, argued that he was justified in this approach, since the Complainant had previously referred to him as the SABC s famous talking corpse who displayed gut-wrenching magnanimity towards Mr. Bristow-Bovey. Mr. Kirby also argued that Mr. Maggs had been incorrect in accusing him of having been in error in regard to Mr. Bullard. He produced e- mails to show that Mr. Bullard was available for an interview on the 21 st September. Mr. Kirby went on to argue that he had not suggested that there was a conspiracy. The question of bias on the part of the SABC, raised in his column, was based on the fact that Mr. Bullard had not been interviewed on the 21 st. This omission led to his question in the column as to a pro-bristow-bovey bias, and was based on pro-bristow-bovey interviews with the latter s publisher on the 14 th and with Mr. Bristow-Bovey himself on the 21 st. For the record, it must be stated that Mr Maggs did not assure listeners that an interview would be conducted with Mr. Bullard, but that he was hoping to do so on the 21 st. [7] Ultimately, the dispute boils down to the following: (1) Was there bias in favour of Mr. Bristow-Bovey on the part of the SABC? (2) Was Mr. Maggs correct in

7 7 stating on the 28 th that Mr. Bullard was unavailable on the 21 st and, accordingly, of accusing Mr. Kirby of having been incorrect in what he had stated in his column? (3) Was there an invasion of Mr. Kirby s privacy by referring to him in the first instance as ageing and bitter and, again, as ageing? and (4) Was the SABC justified in turning down Mr. Kirby s request to reply on air? Bias on the part of the SABC? [8] I do not believe that an inference of bias on the part of the SABC is justified. Although Mr. Maggs expressed some personal sympathy towards Mr. Bristow- Bovey in a style severely criticised by Mr. Kirby in his column he was otherwise very direct in referring to Mr. Bristow-Bovey as having been caught reproducing material from the work of an overseas author. The questions that he wished to put to Mr. Bristow-Bovey in a personal interview, and which were summed up for listeners by Mr. Maggs, were also incisive. In the re-broadcast of her interview, Ms Michelle Constant was also very direct in her personal observations regarding the similarities ( very, very similar ) between Mr. Bristow-Bovey s material and that of the alleged plagiarised author. Although Mr. Maggs s statement that Mr. Bullard was unavailable for an interview is in conflict with what Mr. Bullard says in his s, I cannot unequivocally conclude a pro- Bristow-Bovey bias as a result of this statement. It is possible, for example, that Mr. Maggs had been misinformed by his supporting staff. Yet, Mr. Kirby is correct that what was claimed on air conflicted with Mr. Bullard s s and that it was wrong to have attacked Mr. Kirby for having raised the issue of bias. It is, however, true that Mr. Maggs did state on the 14 th that he was hoping to

8 8 have Mr. Bullard in for an interview on the 21 st. My conclusion is that, even accepting for the moment that Mr. Maggs was incorrect, this error is insufficient to justify an inference of bias; it could possibly also be a case of poor administration or poor communication, but not necessarily of bias. Before an inference of bias may be drawn in such a case, bias must be the only reasonable inference to be drawn. It should be mentioned that the style of the reaction would seem to have amounted to overkill on the part of Mr. Maggs: the Complainant merely raised the question of bias and did not state it as a fact. On the other hand, Mr. Maggs never assured listeners that the interview would be conducted the following week. The Availability of Mr. Bullard [9] The accusation by Mr. Maggs that Mr. Kirby was incorrect in the questions he raised relating to possible bias on the part of the SABC, questions that arose out of the matter of Mr. Bullard s availability, is not borne out by the content of Mr. Bullard s s, which suggest that he was indeed available to be interviewed on the 21 st. The question before us is whether this aspect of the matter gave rise to a duty on the part of the Respondent to grant Mr. Kirby an opportunity to reply, as requested by him. Clause 36 of the Broadcasting Code provides as follows: Controversial issues of public importance 36.1 In presenting a programme in which controversial issues of public importance are discussed, a licensee shall make reasonable efforts to fairly present opposing points of view either in the same programme or in a subsequent programme forming part of the same series of programmes presented within a reasonable

9 9 period of time of the original broadcast and within substantially the same time slot A person whose views are to be criticised in a broadcasting programme on a controversial issue of public importance shall be given a right to reply to such criticism on the same programme. If this is impracticable however, opportunity for response to the programme should be provided where appropriate, for example in a right to reply programme or in a pre-arranged discussion programme with the prior consent of the person concerned. (my emphasis in italics) [10] I have no doubt that the debate on the alleged plagiarism by Mr. Bristow-Bovey amounts to a controversial issue of public importance in terms of Clause This is so whether Mr. Bristow-Bovey acted knowingly or not. He and his publisher both deny intentional wrongdoing and state that the extent was minimal, in any case. It is not this Tribunal s task to express a view as to whether there was plagiarism and whether it was done knowingly, negligently or innocently. At the heart of a newspaper columnist s task lies the duty to be meticulous in what is said to the public: this approach also applies to minutiae. Section 16 of the Constitution guarantees every person s right to receive or impart information or ideas. The Constitutionally guaranteed freedom of the press and other media is placed at grave risk when its commentators and newsrooms cannot be trusted. Accordingly, allegations of plagiarism, whether intentional or not and also in cases where the extent is limited, should be discussed widely and in depth, and there should be optimal freedom to do so. The marketplace of ideas described by American Justice Holmes 1 should be allowed to flourish fully. A debate about 1 Abrams v United States 250 US 616(1919); see CH Heyns A Jurisprudential Analysis of Civil Disobedience in South Africa (Unpublished Doctoral Thesis, Wits 1991) 712 et seq. for the development of Holmes J s free speech doctrine in the US Supreme Court.

10 10 freedom of expression and its meaning within the South African sphere is also of public importance in the light of our dictatorial past, where people were often detained or killed for expressing their views, or they demonstrated for the right to do so. [11] Our Constitutional Court has, in several judgments, emphasized the role of freedom of speech. In S v Mamabolo 2 Kriegler J stated the following in regard to the value of freedom of expression in our present society, in contrast to the Apartheid history of censorship and thought control : Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression the free and open exchange of ideas is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed. In South African National Defence Union v Minister of Defence and Another 3 O Regan J stated the following: Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental functions as a guarantor of demo cracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognizes that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters... [footnotes omitted.] [12] Accordingly, when Mr. Kirby requested an opportunity to reply on air, the SABC was not justified in refusing him this opportunity. He should at least have been afforded the opportunity to raise the question as to whether there was a pro- Bristow-Bovey bias and to substantiate his point of view with reference to the (3) SA 409 (CC) paragraph [37] (4) SA 469 (CC) paragraph [7]

11 11 availability of Mr. Bullard on the programme of the 21 st. Furthermore, he should have been afforded the opportunity to show that these questions were not simply put for dramatic or column effect, but were based on his research on the matter. He should also have been afforded the opportunity to refute the accusation that he was wrong and that he was peddling petty conspiracy theories. The fact that Mr. Bullard was interviewed after the column was published is not relevant to the present issue. There is no evidence that the column inspired the interview. Clause 36.1 of the Code requires in any case that Mr. Bullard, at least, should have been interviewed so as to give the necessary balance to what was said by the publisher and Mr. Bristow-Bovey on the programme. Privacy and Age [13] Mr. Kirby argued that Mr. Maggs s reference to him as an ageing and bitter Western Cape columnist and his repetition of the reference to ageing at a later stage of the 28 th September broadcast, taken together with the innuendo that the ageing might have contributed to inaccuracy, amounted to an invasion of his privacy in terms of clause 38 of the Broadcasting Code, which provides as follows: Insofar as both news and comment are concerned, broadcasting licencees shall exercise exceptional care and consideration in matters involving the private lives and private concerns of individuals, bearing in mind that the right to privacy may be overridden by a legitimate public interest. [14] The right to privacy is guaranteed in section 14 of our Constitution. Section 14 provides as follows: Everyone has a right to privacy, which includes the right not to have- (a) their person or home searched; (b) their property searched; (c) their possessions seized; or

12 12 (d) the privacy of their communications infringed. Although section 14 does not refer to age, the list is not closed, as the word includes indicates. That this is so clearly appears from the judgment of Langa DP (as he then was) in the Hyundai case quoted below. In Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) Ackermann J emphasised the intimate personal sphere as being at the core of privacy. In Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2001 (1) SA 545 (CC) ( the Hyundai case ) Langa DP elaborated on what Ackermann J stated in regard to the intimate personal sphere of life to which privacy pertains, in paragraph [16]: The right, however, does not relate solely to the individual within his or her intimate space. Ackermann J did not state in the above passage that when we move beyond this established (intimate core) we no longer retain a right to privacy in the social capacities in which we act. Thus, when people are in their offices, in their cars or on mobile telephones, they still retain a right to be left alone by the State unless certain conditions are satisfied. Wherever a person has the ability to decide what he or she wishes to disclose to the public and the expectation that such a decision will be respected is reasonable, the right to privacy will come into play. (italics added) [15] Before I deal with the question whether Mr. Maggs acted reasonably in his response to Mr. Kirby s reference to talking corpse and gut-wrenching magnanimity, it should be established whether the remarks as to ageing and bitter invaded the privacy of Mr. Kirby, as argued by him. This brings me to the italicised part of the passage quoted above from the judgment of Langa DCJ. I have no doubt that the age of a person is part of his intimate personal sphere and that for purposes of this case it would be part of Mr. Kirby s privacy. 4 A question that arises is whether the age of Mr. Robert Kirby, a well-known columnist, is not a matter that is fair game. As an 4 Compare Neethling Die Kredietburowese en Databeskerming 1980 THR-HR 141 at 145-6

13 13 author, he must live with the harshest form of criticism against his opinions, but does that entitle his critics to engage in the disclosure of facts relating to his private life, with the innuendo that the inaccuracy he is accused of might be attributable to his age? I do not believe that the question put by Mr. Kirby as to bias justified a retort that referred to his age plus the innuendo. There was nothing in the question as to bias which could have been motivated by his age, or, for that matter, his alleged bitterness. I might mention that had the retort been limited to the use of the word bitter, I would have written that off as part of the hurly-burly in which debating columnists find themselves. [16] Once an invasion of privacy is found to have taken place, that does not put an end to the inquiry. The next question is whether the invasion was in conflict with the Broadcasting Code: was it possibly in the public interest or justified by other circumstances? Was Mr. Maggs not entitled to have reacted in this manner? He testified that he was annoyed by the reference to himself as the SABC s talking corpse, as well as by the accusation of being motivated by gut-wrenching magnanimity and the questions as to bias on the part of the SABC, which in effect related to him as a presenter. In the law of defamation, and this would also apply to privacy, it is required that when one retorts in annoyance or anger it must be objectively reasonable in the circumstances. 5 There is no evidence that Mr. Maggs reacted immediately upon having read what Mr. Kirby had written. Furthermore, his response in the broadcast had no bearing on Mr. Kirby s description of him as a 5 See Neethling 1989 SALJ ; Bester v Calitz 1982(3) SA 864(O) and Van Aswegen 1982 De Jure 368).

14 14 talking corpse, etc. Instead, the response had a bearing on the allegation of bias and the availability of Mr. Bullard. A last question is whether the kind of language used must not be tolerated as part of the harsh and robust language that commentators are allowed to use in debates, and which has become customary in certain circumstances where differences of opinion on matters of public policy are expressed. 6 It would indeed be a sad day for the marketplace of ideas if irony, sarcasm and hard-hitting criticism were to be banned from such debates. Yet, when the privacy of the accuser is invaded during the course of responses to his or her accusation ( in this case a question), the privacy issue is unrelated to the accusation and an innuendo that the ageing might have contributed to the alleged inaccuracy is added, then the response is unreasonable. My conclusion, in the circumstances, is that the retort was unreasonable. The fact that the reference to ageing was repeated by Mr. Maggs contributes to this conclusion. It should be stated for the record that we were impressed by Mr. Maggs s candid approach to the matter during his testimony before us. Although this approach is mitigating when it comes to sanction against the SABC, the fact remains that, objectively, he acted out of bounds in his response on air. The SABC, as the broadcaster involved, is responsible for this conduct. If Mr. Maggs had a problem with what Mr. Kirby had written, he could have approached the Press Ombudsman with a complaint. His broadcasting programme was not the appropriate and legally 6 Compare Rivett-Carnac v Wiggins 1997(3) SA 80(C) at 92G-93A.where it was held that the criticism did not amount to an attack on the reputation or privacy of the plaintiff it amounted to robust professional disagreement. The present facts are, accordingly, distinguis hable from the facts in the Wiggins case in that Mr. Kirby s privacy was invaded upon unjustifiably.

15 15 justified place for the retort, which had no bearing on the question as to bias of the SABC. [17] In the light of the conclusion reached, it is not necessary to deal with Mr. Kirby s argument that the reference to ageing was also discriminatory against him. [18] As an aside, I might add that both Mr. Kirby and Mr. Maggs demonstrated their understanding of the minefield within which they function as commentators, and we were impressed by the high level of argument and testimony addressed to us. It was also gratifying to note the manner in which the two commentators expressed, during the hearing before us, an understanding not only regarding each other s points of view, but also regarding the importance of freedom of speech. [19] The conclusion which we have reached is, accordingly, as follows: The SABC was in contravention of the Broadcasting Code by (1) not having granted Mr. Kirby an opportunity to respond on air to the accusation of error on his part; and (2) broadcasting material which invaded the privacy of Mr. Kirby unreasonably. Although Mr. Kirby requested an apology from the SABC, the Constitution of the BCCSA does not allow us to issue a directive that an apology be broadcast. It would seem too late to direct that Mr. Kirby be granted a right to reply now. The following is, accordingly, directed:

16 16 That the Manager or Acting Manager of SAfm make the following statement on air immediately after the commencement of the first or second programme following the release of this judgment: The Broadcasting Complaints Tribunal of South Africa has held that the broadcast edition of on the 28 th September 2003 entitled Mr. Robert Kirby, a columnist for the Mail & Guardian, to reply to an accusation made by the presenter during that programme. Mr. Jeremy Maggs accused Mr. Kirby of getting it wrong by questioning in his newspaper column the objectivity of the SABC as a result of the broadcaster not having invited a protagonist for the anti-plagiarism lobby, i.e. Mr. David Bullard, to take part in the programme on the preceding Sunday, when an interview with Mr. Bristow-Bovey was broadcast. Mr. Kirby produced evidence at the hearing before the Tribunal that Mr. Bullard had in fact been available and that Mr. Maggs was incorrect to have stated that Mr. Bullard was not available. The Tribunal held that, whatever the position as to Mr. Bullard s availability was, Mr Kirby was entitled to reply on air to the accusation of being wrong, and thus to have been in a position to have provided evidence regarding Mr. Bullard s availability. The SABC, accordingly, contravened the Broadcasting Code in not granting Mr. Kirby such an opportunity. The Tribunal also held that the presenter, Mr. Maggs, invaded the privacy of Mr. Kirby unreasonably by referring to him as an ageing and bitter Western Cape newspaper columnist. These remarks were uncalled for. It was conceded by the presenter that this retort was itself in response to unkind remarks made about him by Mr. Kirby in the Mail & Guardian column. The Tribunal held that it was

17 17 unreasonable to have responded in this manner to Mr. Kirby s remarks during the broadcast, and that the response was irrelevant, since it did not relate to the debate about the availability of Mr. Bullard or to the question of a pro-bristow-bovey bias on the part of the SABC, as raised by Mr.Kirby in his column. As an author, Mr. Kirby must live with the harshest form of criticism against his opinions, but critics are not entitled to engage in the disclosure of facts relating to his private life, with the innuendo that the inaccuracy he is accused of may be attributable to his age. The SABC, as the relevant broadcaster, is responsible for the conduct of the presenter. The Tribunal held, in favour of the SABC, that the broadcaster had not been biased in its treatment of the debate on the alleged plagiarism. When the above order was circulated to Mr. Kirby in draft form, Mr. Kirby indicated that he no longer required a broadcast of the above order. He believes that the matter has now been settled by the judgment as such, and that a further broadcast is not necessary. We considered this concession and retracted the above order. It is, however, left in the judgment since it does provide a summary to our conclusions. JCW VAN ROOYEN SC CHAIRPERSON 21 January 2004 Commissioners Du Toit, Gilfillan and Africa concurred in the judgment of the Chairperson.